Van Orden v. Perry

''Van Orden v. Perry'', 545 U.S. 677 (2005), was a United States Supreme Court case involving whether a display of the Ten Commandments on a monument given to the government at the Texas State Capitol in Austin violated the Establishment Clause of the First Amendment.

In a suit brought by Thomas Van Orden of Austin, the United States Court of Appeals for the Fifth Circuit ruled in November 2003 that the displays were constitutional, on the grounds that the monument conveyed both a religious and secular message. Van Orden appealed, and in October 2004 the high court agreed to hear the case at the same time as it heard '' McCreary County v. ACLU of Kentucky'', a similar case challenging a display of the Ten Commandments at two county courthouses in Kentucky.

The appeal of the 5th Circuit's decision was argued by Erwin Chemerinsky, a constitutional law scholar and the Alston & Bird Professor of Law at Duke University School of Law, who represented Van Orden on a ''pro bono'' basis. Texas' case was argued by Texas Attorney General Greg Abbott. An ''amicus curiae'' was presented on behalf of the respondents (the state of Texas) by then- Solicitor General Paul Clement.

The Supreme Court ruled on June 27, 2005, by a vote of 5 to 4, that the display was constitutional. The Court chose not to employ the popular Lemon test in its analysis, reasoning that the display at issue was a "passive monument." Instead, the Court looked to "the nature of the monument and ... our Nation's history." Chief Justice William Rehnquist delivered the plurality opinion of the Court; Justice Stephen Breyer concurred in the judgment but wrote separately. The similar case of '' McCreary County v. ACLU of Kentucky'' was handed down the same day with the opposite result (also with a 5 to 4 decision). The "swing vote" in both cases was Breyer.

Background

The monument under challenge was 6-feet high and 3-feet wide which was installed in 1961. It was donated to the State of Texas by the Fraternal Order of Eagles, a civic organization, which had received the support of Cecil B. DeMille, who had directed the film '' The Ten Commandments'' (1956). The State accepted the monument and selected a site for it based on the recommendation of the state agency responsible for maintaining the Capitol grounds. The donating organization paid for its erection. Two state legislators presided over the dedication of the monument.

The monument was erected on the Capitol grounds, behind the capitol building (between the Texas Capitol and Supreme Court buildings). The surrounding 22 acres (89,000 m²) contained 17 monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texan identity."

Plurality opinion

The plurality opinion stated that the monument was constitutional, as it represented historical value and not purely religious value. The primary content is the text of the Ten Commandments. An eagle grasping the American flag, an Eye of Providence, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription in capitals "Presented to the People and Youth of Texas by The Fraternal Order of Eagles of Texas 1961."

Below the above matter, and the title "the Ten Commandments", the monument's text reads in full:

I AM the LORD thy God.
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images.
Thou shalt not take the Name of the Lord thy God in vain.
Remember the Sabbath day, to keep it holy.
Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.
Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against thy neighbor.
Thou shalt not covet thy neighbor's house.
Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's.

Thomas Van Orden challenged the constitutionality of the monument. A native Texan, Van Orden passed by the monument frequently when he would go to the Texas Supreme Court building to use its law library.

Breyer's concurrence

Breyer's concurrence in this case is made all the more interesting because on the surface it appears that he voted quite differently in '' McCreary County v. ACLU of Kentucky'', a case which was heard and decided at the same time and seems, to the casual observer, virtually identical. However, in ''Van Orden v. Perry'', Breyer submitted an opinion separate from that of the Court, while in ''McCreary'' he did not. As a result, the ''Van Orden'' case was decided by a plurality, not a majority

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